Brahmdeo Singh and others vs Janki Lal and others

Fazl Ali, J.—It appears that opposite party 3 obtained a rent decree in the Court of the Munsif at Patna against opposite party 2 and put his holding to sale in execution thereof. On 14th August 1933 the petitioner purchased the holding in execution of the rent decree. On 24th August 1933 opposite party 1, who is admittedly a mortgagee of a portion of the holding, filed an application under O. 21, R. 90, and S. 151, Civil P.C., for setting aside the sale. A number of grounds were urged in support of this petition, one of which was that the property had been purchased by the judgment debtor in the farzi name of the petitioner. The application was at first dismissed by the Munsif on the ground that opposite party 1 had no locus standi to question the sale, but this decision was reversed on appeal and the suit was sent back to the Munsif for disposal on the merits. The Munsif thereupon went into the merits, and although he held that the sale had taken place in execution of a rent decree and there was no irregularity or fraud committed in the conduct of the sale as contemplated in O. 21, R. 90 yet as he came to the conclusion that the holding had been purchased by the judgment-debtor himself in the farzi name of the petitioner, he set aside the sale, treating the application of opposite party 1, as one made under S. 173, Ben. Ten. Act.

Now the first point raised by Mr. B.C. Sinha, who appears on behalf of the petitioner, is that the learned Munsif was not competent to treat the application of the opposite party as an application under S. 173, Ben. Ten. Act. It is true that opposite party made no inference to S. 173, Ben. Ten. Act, in this application and his appeal was filed to the District Judge on the footing that I the application made by him was one under O. 21, R. 90. Bat on the other hand it is to be remembered that opposite party 1 did state in his application is one of the grounds on which he attacked the sale that the holding had been purchased by the judgment-debtor himself. In my opinion this was quite Sufficient to attract the jurisdiction of the Munsif under S. 173, Ben. Ten Act, land there was nothing to prevent him from setting aside the sale, if he was [satisfied that the holding had been purchased by the judgment-debtor himself. It is evident that the Courts in exercising their powers are not to be fettered by the mere fact that the party concerned has chosen to describe his application by a particular label but should look to the essence of the whole matter before him.

The second ground urged by Mr. Sinha is that the mortgagee of a part of the holding is not a person interested in the sale within the meaning of the expressions used in S. 173, Ben. Ten Act. It is conceded that at an earlier stage of the litigation a question arose as to whether opposite party 1 was a person affected by the sale in the sense in which the expression has been used in O. 21, R. 90, Civil P.C., and it was ultimately decided that he was such a person. It is evident that if he is a person affected by the sale, he is also a person interested in the safe Indeed it is not denied that if the sale is upheld, his encumbrances will be liable to be avoided under S. 167, Ben. Ten Act. It appears to me therefore that the learned Munsif was quite competent to set aside the sale upon an application made by opposite party 1.

It is however contended that upon the finding arrived at by the learned Munsif it was the judgment-debtor who was the real purchaser of the holding, the mortgage of opposite party 1 would not have been affected, and so in this view he is not a person interested in the sale. I am however not greatly impressed by this argument. The expression "any person interested in the sale" which occurs in S. 173, Ben. Ten Act, is fairly comprehensive and appears to we to be [even more comprehensive than the expression "any person whose interest is affected by the sale" which is used in O. 21, R. 90, Civil P.C., Thus even though the interest of a mortgagee of a part or whole of the holding may not be affected if it is finally adjudicated that the holding is purchased by the judgment-debtor himself, yet there can be no doubt that his mortgage is jeopardized as soon as the holding is sold and that fast alone is sufficient to enable him to maintain an application under S. 173, Ben. Ten Act. In my opinion therefore the application must fail and is accordingly dismissed with costs.